K. Ramaswamy, J.— After spending considerable time on diverse questions canvassed across the Bar, we are of the opinion that this appeal requires to be posted before a Constitution Bench for deciding the questions that arise in the appeal. We would, however, indicate in brief the facts, the findings recorded and the questions raised which impress us to refer the matter for decision by the Constitution Bench. This appeal under Section 116-B of the Representation of the People Act, 1951 (for short, ‘the Act’) arises from the judgment dated 24-12-1991 of the Bombay High Court passed in Election Petition No. 11 of 1991.
2. The respondent, since deceased, his legal representatives have been brought on record and a notice, as required under the Act, was also duly published. He contested as a Congress Party candidate in the election to No. 40, Santacruz Legislative Assembly Constituency in 1990 for the Maharashtra State Assembly. The appellant is the returned candidate who filed his nomination on 31-1-1990 which was accepted on 8-2-1990. The poll was held on 27-2-1990. The result of the election was declared on 1-3-1990 declaring that the appellant was duly elected. He contested election as a BJP candidate and was also Vice-President of the Bombay Unit of the said party. He secured single largest majority votes while the respondent secured second largest. By judgment dated 19-12-1991 the High Court allowed the election petition.
3. In paragraph 186, the High Court held that
“the voluminous oral as well as documentary evidence leaves no room for doubt that the plank of Hindutva/Hinduism/Hindu was used”.
In paragraph 187 it is held that
“it is clear from the voluminous material on record that the campaign was on the basis of appealing for votes on the basis of first respondent's community and religion, i.e, the Hindu community and religion and that there was an attempt to create enmity and hatred between different classes of citizens on the basis of religion, community and caste particularly between the Hindus and the Muslims”.
In paragraph 198 it is further held that
“prima facie, it does appear that the leaders have appealed for votes for the Hindu candidates of the two parties on the basis of their religion and community. Prima facie, it does appear that the leaders did attempt to create enmity and hatred between different classes of citizens on the grounds of community and religion”.
In paragraph 197, it is held that:
“(I)n my view, it will have to be held that the tape recordings contain the speeches made at these meetings. This of course is subject to hearing the leaders of these two parties on the notices under Section 99 of the Representation of the People Act, 1951 which have been issued to them in Election Petition No. 21 of 1990.”
4. Shri A.M Khanwilkar, the learned counsel for the appellant, contended that in view of the decisions of this Court in Suryakant Venkatrao Mahadik v. Saroj Sandesh Naik (Bhosale) (1996) 1 SCC 384, Ramakant Mayekar v. Celine D'Silva (1996) 1 SCC 399, Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli (1996) 1 SCC 378, Prof. Ramchandra G. Kapse v. Haribansh Ramakbal Singh (1996) 1 SCC 206, Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar (1996) 1 SCC 394 the findings recorded under Sections 123(3) and 123(3-A) of the Act without compliance of the requirements of notice and opportunity under Section 99, which was held to be a duty of the court, vitiate the declaration that the appellant's allegations are baseless. The speeches made by the leaders on 10-2-1990, 17-2-1990, intervening night of 20 and 21-1-1990, 23-2-1990 within the constituency and on 24-2-1990 outside the constituency, were not made with his consent. Therefore, corrupt practices have not been proved. By reason of the ratio in Manohar Joshi v. Damodar Tatyaba (1991) 2 SCC 342 (hereinafter referred to as “Manohar Joshi case No. 2”) this Court had held that the court has to extract pleadings of corrupt practices, evidence — oral and documentary in proof thereof and in the order the Judge is required to indicate portions of his prima facie findings of the speaker appealing to the voters on the basis of religion etc. The court should supply the pleadings, evidence — oral and documentary and the copy of the order so as to enable the noticee to adequately meet the ground on which he is proposed to be named in the order. This mandatory requirement has not been complied with. Therefore, the judgment is clearly illegal. He, therefore, requested to remit the matter for taking the proceedings under Section 99(1) proviso as interpreted in Manohar Joshi case No. 2 (1991) 2 SCC 342. Shri B.A Desai, the learned counsel for the respondent, has controverted the same.
5. Prima facie, the following three questions which are interwoven, arise for decision in the case:
(i) whether the learned Judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the returned candidate or his agents or collaborators (leaders of the political party under whose banner the returned candidate contested the election) or any other person on his behalf?
(ii) whether the consent of the returned candidate is required to be proved and if so, on what basis and under what circumstances the consent is held proved?
(iii) on reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1), proviso (a) should contain, like a mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence — oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?
6. There is a common thread that runs through many a decision of this Court which mandates as duty of the High Court under sub-section (1) of Section 99, requiring at the time of making an order under Section 98 to make an order recording the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice. The High Court is required to refer names of all persons proved guilty of any corrupt practice which have been proved at the trial. Under proviso to sub-section (1), the person who has not been a party to the petition has to be given notice to appear before the High Court to show cause why he should not be named. If he appears pursuant to the notice, he should be given an opportunity of cross-examining any witness who has already been examined and given evidence and of calling evidence in his defence and of being heard.
7. In Ramesh Yeshwant Prabhoo (Dr) v. Prabhakar Kashinath Kunte (1996) 1 SCC 130, the scope of the content of the notice under Section 99(1), proviso (a) came up for consideration. Background facts to the said decision are required to be stated here. In Election Petition No. 1 of 1988 which is the subject-matter of the above appeal, at the close of the trial, by order dated 23-9-1988, the learned Judge while holding that notice under Section 99 was necessary, the Court reached prima facie finding that the charges alleged in the petition of the corrupt practices under Sections 123(3) and 123(3-A) have been proved against the named persons and directed notice to them to show cause why they should not be so named in the order of the election petition; the notice indicated that the named persons shall have opportunity to cross-examine the witnesses already examined at the trial and gave evidence against him and of calling evidence in his defence and of being heard. Accompanying the notice, photocopies of the petition, written statement, the issues, the evidence — oral and documentary were supplied. In furtherance thereof, Shri Bal Thackeray had appeared on 27-9-1988 and contended that the notice was vague since the notice did not indicate as to which portions of the speeches were believed and relied upon to reach prima facie conclusion. By order dated 10-10-1988, the learned Judge overruled the objections by a written order which was challenged in Special Leave Petition No. 13163 of 1988. A Bench of two Judges of this Court by order dated 1-12-1988 dismissed the petition holding that notice under Section 99 was not required to specify all the portions of the speeches indicated to be corrupt practices under sub-sections (3) and (3-A) of Section 123. However, liberty was given to Bal Thackeray to file an application before the High Court seeking to specify those portions which according to the Court prima facie come within the purview of sub-section (3) or (3-A) of Section 123. If such an application was made, the High Court was directed to dispose of it in accordance with law.
8. Subsequently, an application came to be made and by order dated 16-12-1988 the learned Judge held that Section 99 does not require the court to analyse the evidence and specify either in the notice under Section 99 or at any time prior to hearing the persons to whom notice had been issued, “portion or portions thereof in its view prima facie to make out the case which the noticee is called upon to answer”. His position can be no better than the elected candidate. It was held that the noticee is not entitled to be specified by the court of the portions of the speeches which according to it prima facie fall within the purview of sub-section (3) or (3-A) of Section 123 either in the show-cause notice under Section 99 or at any time prior to so showing cause. Accordingly, the High Court directed the counsel appearing for the election petitioner “to indicate on which portions of the speeches or evidence he seeks to place reliance at the hearing of the election petition” and directed him to furnish to the noticee or his advocate xerox copy of those speeches, marking in the margin thereof the portions that are so stressed. Accordingly, it was done. Special Leave Petition No. 507 of 1989 filed against that order came to be dismissed by order dated 23-1-1989 of another Bench of two Judges.
9. In the light of the above background, an argument was raised in the appeal that the appellant was prejudiced for non-compliance of the procedure under Section 99. The Bench had held that “it is difficult to visualise what prejudice was caused to the noticee on these facts and how there should be any non-compliance of Section 99 of the Representation of the People Act in this situation” and it was held that, in short, the opportunity which a party to the petition had at the trial to defend allegations of corrupt practices is to be given by such a notice to that person for defending himself if he was not already a party to the petition. In other words, the noticee has to be equated with a party to the petition for this purpose and has to be given the same opportunity which he would get if he was made a party to the petition. This is the pragmatic test to be applied for deciding the question of compliance of requirements of Section 99. The opportunity required to be given by virtue of proviso to sub-section (1) of Section 99 is the same and not more than that available to a party to the petition to defend himself in respect of corrupt practices. It was held, therefore, that the grievance that the portion of the material which formed the record at the trial was not purposely communicated to the noticee, had no merit.
10. The earlier Bench of three Judges in Manohar Joshi Case No. 2 (1991) 2 SCC 342 in the same situation arising out of Election Petition No. 9 of 1990 from the same Court had held that notice should contain the portions of the petition, written statement, oral and documentary evidence which is sought to be relied upon in support of the said charge or each of the said charges and the prima facie findings thereon which is the minimum safeguard. In other words, a mini judgment was required to be rendered. The orders referred to in the special leave petitions in Dr Prabhoo case (1996) 1 SCC 130 were deemed to have been overruled. It would thus be seen that the decisions in Manohar Joshi case No. 2 (1991) 2 SCC 342 and Dr Prabhoo case (1996) 1 SCC 130 are mutually conflicting. If this Bench was to take yet another view, it would create yet another dimension. Which of the two views is correct is the question required to be decided by a larger Bench of five Judges.
11. In Dr Prabhoo case (1996) 1 SCC 130 it was held that consent to the speeches of the collaborators by the returned candidate should be inferred and accordingly in paragraphs 53 and 57 the Court inferred such a consent but in other cases, it was held that consent is required to be proved. There appears to be some inconsistency in the above view. In any case as to when the case is held proved has not been specifically laid as law. This requires to be authoritatively decided.
12. As stated earlier, when and under what circumstances, speeches of the leaders of the political party or the appeal of any other person with the consent by a candidate or his election agent to vote or refrain from voting on the ground of religion, race, caste or community or language, etc. or promotion or an attempt to promote feelings of enmity or hatred between different classes of citizens of India on the ground of religion, race, caste, community or language with the consent of the candidate or his election agent for the furtherance of the prospects of the election of the candidate or prejudicially affect the election of any candidate, constitutes corrupt practice under sub-sections (3) or (3-A) of Section 123. Its content and scope also require to be clearly laid down authoritatively lest miscarriage of justice in interpretation of “corrupt practice” involved in every election petition would ensue. The purity of election process gets fouled and (sic becomes) fraught with deleterious effect in a democratic polity.
13. Thus, without expressing any opinion on these questions, we are of the view that the entire case requires to be heard and decided by a larger Bench of five Judges since the decision thereon impinges upon the purity of election process and requires to be decided authoritatively.
14. We, therefore, direct the Registry to place the case before our learned brother, the Chief Justice for constituting a larger Bench of five Judges, and, if possible, at an early date so that all the questions arising in the present appeal could be decided authoritatively and expeditiously.
15. Thus, this reference order in the above terms.